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COURTS
Outline

I. CONSTITUTIONAL REQUIREMENTS
A. Amendment VIII of the United States Constitution
B. Amendment XIV of the United States Constitution

II. INTERPRETATIONS
A. Eighth Amendment: A Guide to the Eighth Amendment
B. Amendment VIII – Excess Bail or Fines, Cruel and Unusual Punishment
C. Eighth Amendment: Free Dictionary
D. How the Courts View ACA Accreditation

III. OREGON
A. Oregon Criminal Justice Commission
B. Court Opinions & Law Reviews/Studies

IV. UNITED STATES
A. Public Safety Organization
B. Court Opinions & Law Reviews/Studies
1. Court Opinions Supporting Dolovich Topics
2. Law Review/studies Supporting Dolovich Topics

V. ACADEMIA


VI. OREGON COURTS: OREGON JUDICIAL SYSTEM
A. Access to Justice Resources
B. Flow Charts


I. CONSTITUTIONAL REQUIREMENTS

A. AMENDMENT VIII of the United States Constitution

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

B. AMENDMENT XIV of the United States Constitution

SECTION. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Eighth Amendment (Amendment VIII) to the United States Constitution is the part of the United States Bill of Rights (ratified December 15, 1791) prohibiting the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishment.

The incorporation of the Bill of Rights (or incorporation for short) is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to 1925, the Bill of Rights was held only to apply to the federal government. Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments.

Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

II. INTERPRETATIONS

A. Eighth Amendment: A Guide to the Eighth Amendment
Laws http://kids.laws.com/eighth-amendment

The Eighth Amendment, or Amendment VIII of the United States Constitution is the section of the Bill of Rights that states that punishments must be fair, cannot be cruel, and that fines that are extraordinarily large cannot be set. The Eighth Amendment was introduced as a part of the Bill of Rights into the U.S. Constitution on September 5, 1789 and was voted for by 9 out of 12 states on December 15, 1791.

Understanding the Eighth Amendment Line by Line If you are confused by what each line of the Eighth Amendment means, here are some good explanations to make the Eighth Amendment easier to understand:

"Excessive bail shall not be required, nor excessive fines imposed":

• The courts are not allowed to assign an accused person a large and excessive amount of money for bail. This is because if they could, a judge would have the chance to judge someone early on and set a bail amount based on that.
• Bail is the property or money given to a court as a promise that the accused person will return for his trial. If the accused person does not show up, he or she will lose their bail money or property. The amount of bail assigned depends on the type of crime committed and the chance that the accused person will return for his trial. If the crime is very serious, the bail will be higher.

"Nor cruel and unusual punishments inflicted":

• According to the Eighth Amendment, punishments cannot be cruel or unusual. However, it is not exactly clear what cruel and unusual really means. When the Eighth Amendment was written, the Framers were considering situations where severe punishments would be used, such as being strangled, branded, or burned, or being locked in stocks. The Eighth Amendment works to prevent these types of punishments.

Facts about the Eighth Amendment

• The Eighth Amendment is a part of the Bill of Rights, which were introduced by James Madison
• The Eighth Amendment also applies to the States.
• Some punishments are completely forbidden under the Eighth Amendment, such as taking away a person’s citizenship, or painful and hard labor.
• Because of this amendment, there are laws for the death penalty (for example, death by firing squad is not allowed).

B. Amendment VIII – Excess Bail or Fines, Cruel and Unusual Punishment (1791)
US Legal http://system.uslegal.com/u-s-constitution/amendment-viii-excess-bail-or-fines-cruel-and-unusual-punishment-1791/

The Eighth amendment of the US Constitution was adopted in 1791 as part of the US Bill of Rights. The amendment reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."[i] The Eighth Amendment has three clauses, namely the excessive bail clause; excessive fines clause; and cruel and unusual punishment clause.

Excessive Bail clause: The excessive bail clause revolves around the principle that "an accused is presumed innocent until found guilty." Bail is an amount the courts may require an accused to furnish as security to ensure the accused person’s appearance for trial. The bail amount can be money, property or a bond. Although, the bail amount is decided by the court, the excessive bail clause requires reasonableness in fixing the amount. If the accused is able to furnish the bail amount to the court, then the accused will be set free on bail until trial. During the bail period the accused can go back into normal society. The bail system ensures that the accused will come back to court for trial. Courts consider the following in determining bail: 1) the severity of the offence, 2) levels of evidence proffered against the accused, 3) family and employment ties and commitments of the accused, 4) if the accused is able to furnish the bond amount, and 5) if there is any possibility for the accused to flee.

Using the standards above, courts set a reasonable bail amount however, the bail amount should not be too low so that the accused is enticed into forfeiting the bail amount and fleeing. If a court finds that the accused, if released, will likely cause danger to the community a court may deny bail altogether.

If the accused appears for future court proceedings the accused will get back his/her bail money upon conclusion of the court proceedings. If the accused fails to appear he/she forfeits the bail amount.

Excessive fines clause: Unlike the excessive bail clause, courts are given greater freedom under excessive fines clause. Imposing fines is considered a discretionary power of the judge, and the decision of a lower court judge on fines will be over turned if that judge is found to have abused his/her discretion in deciding setting fines. Thus, abuse of discretion is the standard used in checking if fines are imposed excessively, arbitrarily or capriciously.

Cruel and unusual punishment: According to this clause, state and federal governments shall not sentence an accused to cruel and unusual punishments, however heinous the criminal act may be. All punishments should be directly proportionate to the offense committed. Appellate courts have authority to overturn any disproportionate punishment. Although, there is no definition provided for the term ‘cruel and unusual punishment’ some examples have been developed through case law, namely: castration, burning at the stake, quartering, crucifixion, breaking on the wheel, and other punishments that involve a lingering death. Additionally, a state statute which imposed compulsory sterilization of criminals and the feeble-minded in order to prevent them from reproducing was invalidated due to it being cruel and unusual.

A test entitled the ‘Trop standard’ was evolved in a case called Trop v. Dulles.[ii] Under the Trop standard the Supreme Court tests whether a punishment is offensive to society rather than just being shocking and outrageous. Under the Trop test, a survey is conducted of all state legislation to find out if a particular type of legislation is authorized by most of the states. If most of the states have recognized the legislation then the court will approve the type of punishment prescribed by the legislation as it is not against the evolving standards of decency.

Another test used by the Supreme Court in deciding the constitutionality of a punishment is called the ‘Originalist approach’. Under this test the Supreme Court invalidates all the punishments which seem to have not been approved by the framers of the Eighth Amendment. Accordingly a particular punishment is considered cruel and unusual, if that punishment was prohibited during the time the Eight Amendment was ratified.

[i] USCS Const. Amend. 8
[ii] Trop v. Dulles, 356 U.S. 86 (U.S. 1958)

C. Eighth Amendment

Free Dictionary: The Eighth Amendment to the U.S. Constitution reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment to the U.S. Constitution, ratified in 1791, has three provisions. The cruel and unusual punishments clause restricts the severity of punishments that state and federal governments may impose upon persons who have been convicted of a criminal offense. The Excessive Fines Clause limits the amount that state and federal governments may fine a person for a particular crime. The Excessive Bail Clause restricts judicial discretion in setting bail for the release of persons accused of a criminal activity during the period following their arrest but preceding their trial.

Important Court Opinions On AMENDMENT VIII of the United States Constitution

D. How the Courts View ACA Accreditation

• Friedmann, Alex. October, 2014. How the Courts View ACA Accreditation. Prison Legal News, October, 2014, page 18.
https://www.prisonlegalnews.org/news/2014/oct/10/how-courts-view-aca-accreditation/
The American Correctional Association (ACA), a private non-profit organization composed mostly of current and former corrections officials, provides accreditation to prisons, jails and other detention facilities.

According to the ACA, "Accreditation is a system of verification that correctional agencies/facilities comply with national standards promulgated by the American Correctional Association. Accreditation is achieved through a series of reviews, evaluations, audits and hearings."

To achieve accreditation a facility must comply with 100% of applicable mandatory standards and at least 90% of applicable non-mandatory standards. Under some circumstances, the ACA may waive certain accreditation standards. There are different standards for different types of facilities, such as adult correctional institutions, jails, juvenile detention facilities and boot camp programs.

Notably, the accreditation process is basically a paper review. The ACA does not provide oversight or ongoing monitoring of correctional facilities, but only verifies whether a facility has policies that comply with the ACA’s self-promulgated standards at the time of accreditation. Following initial accreditation, facilities are re-accredited at three-year intervals.

As a result, some prisons have experienced significant problems despite being accredited.

A Colorado, district court stated it was "simply ludicrous" for the defendants to argue they were entitled to summary judgment because "the American Correctional Association formally accredited" the facility and ACA standards address the issue.

However, other courts have taken ACA accreditation into consideration when determining the constitutionality of policies or practices at correctional facilities, such as in Yellow Horse v. Pennington County, 225 F.3d 923, 928 (8th Cir. 2000) (suicide prevention procedures) and Grayson v. Peed, 195 F.3d 692, 697 (4th Cir. 1999) (death of restrained prisoner).

Therefore, incarcerated litigants should use caution when basing arguments on violations of accreditation standards rather than violations of constitutional or statutory rights, and should note the above case law when corrections officials raise accreditation as a defense in lawsuits related to conditions of confinement in prisons and jails.

1. ACA Accreditation: Constitutional Requirements of Eighth and Fourteenth Amendments

• American Correctional Association (ACA) Accreditation
• National Commission on Correctional Health Care (NCCHC) Accreditation

2. Court Opinions On ACA Accreditation

Prison Legal News, Oct. 2009, p.40.
Prison Legal News, Nov. 2013, p.30.
Prison Legal News, Oct. 2013, p.28; May 2013, p.22; Feb. 2012, p.30.
Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979). U.S. Supreme Court
Grenning v. Miller-Stout, 739 F.3d 1235, 1241 (9th Cir. 2014)
Gates v. Cook, 376 F.3d 323, 337 (5th Cir. 2004)
Graves v. Arpaio, 2008 U.S. Dist. LEXIS 85935 (D. Ariz. Oct. 22, 2008) [PLN, Jan. 2010, p.43; May 2009, p.28].
Ruiz v. Johnson, 37 F.Supp.2d 855, 902, 924-25 (S.D. Tex. 1999), rev’d on other grounds, 243 F.3d 941 (5th Cir. 2001).
Feliciano v. Gonzalez, 13 F.Supp.2d 151, 158 n.3 (D.P.R. 1998).
LaMarca v. Turner, 662 F.Supp. 647, 655 (S.D. Fla. 1987), appeal dismissed, 861 F.2d 724 (11th Cir. 1988)
Boulies v. Ricketts, 518 F.Supp. 687, 689 (D. Colo. 1981).
Yellow Horse v. Pennington County, 225 F.3d 923, 928 (8th Cir. 2000) (suicide prevention procedures)
Grayson v. Peed, 195 F.3d 692, 697 (4th Cir. 1999) (death of restrained prisoner).

III. OREGON

A. Oregon Criminal Justice Commission

2010. Oregon Criminal Justice Commission: Administrative Overview

B. Court Opinions


1974. Schmidt V. Lessard, (1974) United States Supreme Court, No. 73-568
1980. Capps v. Atiyeh: 495 F.Supp. 802. Civ. Nos. 80-141, 80-6014. United States District Court, D. Oregon (1980)
1981. Atiyeh v. Capps, 449 U.S. 1312, 101 S. Ct. 829, 66 L. Ed. 2d 785 (1981)
1983. Capps v. Atiyeh, 559 F. Supp. 894 (D. Or.1983)
1986. Whitley v. Albers, No. 84-1077 (1986)
1993. LeMaire V. Maass, 12 F.3d 1444, Nos. 91-35249, 91-35557 (1993)

Constitutional Court Opinions Related To Capps v. Atiyeh

1958. Trop v. Dulles, 356 U.S. 86, 100, 78 S. Ct. 590, 597-98, 2 L. Ed. 2d 630 (1958)
1961. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961)
1962. Robinson v. California, 370 U.S. 660, 666, 82 S. Ct. 1417, 1420, 8 L. Ed. 2d 758 (1962)
1965. Grenfell v. Gladden, 241 Or. 190, 405 P.2d 532 (1965)
1975. Bekins v. Cupp, 21 Or.App. 16, 533 P.2d 817 (1975)
1975. Curtis v. OSCI, 20 Or.App. 530, 532 P.2d 798 (1975)
1967. Kent v. Cupp, 26 Or.App. 799, 802-03, 554 P.2d 196, 197-98 (1967)
1972. Morales v. Schmidt, 340 F. Supp. 544, 548-49 (W.D.Wis. 1972), rev'd, 489 F.2d 1335 (7th Cir.1973), remanded on rehearing, 494
F.2d 85 (7th Cir.1974)
1974. Wolff v. McDonnell, 418 U.S. 539, 561-62, 94 S. Ct. 2963, 2977-78, 41 L. Ed. 2d 935 (1974)

1975. O'Connor v. Donaldson, 422 U.S. 563, 584, 95 S. Ct. 2486, 2498, 45 L. Ed. 2d 396 (1975)
1976. Pugh v. Locke, 406 F. Supp. 318, 324 (M.D. Ala.1976)
1976. Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)
1976. Gregg v. Georgia, 428 U.S. 153, 186, 96 S. Ct. 2909, 2931, 49 L. Ed. 2d 859 (1976)
1977. Battle v. Anderson, 564 F.2d 388, 393 (10th Cir.1977)
1977. Todaro v. Ward, 565 F.2d 48, 52 (2d Cir.1977)
1977. Bowring v. Godwin, 551 F.2d 44, 48 n. 3 (4th Cir. 1977)
1978. Hutto v. Finney, 437 U.S. 678, 687, 98 S. Ct. 2565, 2571, 57 L. Ed. 2d 522 (1978)
1878. Bell v. Wolfish, 441 U.S. at 547, 99 S. Ct. at 1878.
1978. Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir.1978)
1979. Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979)
1979. Palmigiano v. Garrahy, 443 F. Supp. 956, 966 (D.R.I.1977), remanded, 599 F.2d 17 (1st Cir.1979)

1979. Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979)
1980. Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980), cert. denied, 451 U.S. *908 937, 101 S. Ct. 2015, 68 L. Ed. 2d 323 (1981)
1980. Cf. West v. Lamb, 497 F. Supp. 989, 1001 (D.Nev.1980)
1980. Manney v. Cabell, 654 F.2d 1280 (9th Cir.1980)
1980. Ohlinger v. Watson, 652 F.2d 775, 777 (9th Cir.1980)
1980. Ruiz v. Estelle, 503 F. Supp. 1265, 1339 (S.D. Tex.1980)
1980. Armstrong v. Cupp, No. 121,599 (Marion County Cir.Ct., July 22, 1980).
1980. Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S. Ct. 1759, 68 L. Ed. 2d 239 (1981)

1981. Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981)
1981. Atiyeh v. Capps, 449 U.S. 1312, 101 S. Ct. 829, 66 L. Ed. 2d 785 (1981)
1981. Wright v. Rushen, 642 F.2d 1129 (9th Cir. 1981). 652 F.2d 823 (9th Cir.1981)
1982 Cf. Albers v. Whitley, 546 F. Supp. 726 (D. Or.1982)
1982. Hoptowit v. Ray, 682 F.2d 1237, 1245 n. 2 (9th Cir.1982)
1982. Smith v. Fairman, 690 F.2d 122, 125 (7th Cir.1982)
1982. Ruiz v. Estelle, 679 F.2d 1115, 1139-40 (5th Cir.1982)
1982. Stickney v. List, 519 F. Supp. 617 at 620 (D. Nev.1982).
1982. Albers v. Whitley, 546 F. Supp. 726 (D.Or.1982)
1982. Sterling v. Cupp, 290 Or. 611, 616 n. 5, 625 P.2d 123, 127 n. 5 (1981). But cf. Ruiz v. Estelle, 679 F.2d 1115, 1156-59 (5th Cir.1982)
1982. Youngberg v. Romeo, ___ U.S. ___, ___, 102 S. Ct. 2452, 2461, 73 L. Ed. 2d 28 (1982) quoting 644 F.2d 147, 178 (3rd Cir.1980)

******

1982. Cf. Stanwood v. Green, No. 72-981 (consent decree filed March 12, 1982; Coos County, Oregon jails)
1981. Roberts v. Speelman, No. 81-6096 (consent decree filed July 21, 1981; Baker County, Oregon jails)
Allen v. Hammond, No. 77-1030
Nims v. Sullivan, No. 77-1031

Law School Articles Quoted In Capps v. Atiyeh

Without "Due Process": Unconstitutional Law in Oregon, 49 Or.L.Rev. 125, 131-35 (1970)
The Remedial Process in Institutional Reform Litigation, 78 Colum.L.Rev. 784, 807-08 (1978)
Complex Enforcement: Unconstitutional Prison Conditions, 94 Harv.L.Rev. 626, 628 (1981)

IV. UNITED STATES

A. Public Safety Organization

B. Court Opinions & Law Reviews/Studies

The full text of the Eighth Amendment of the U.S. Constitution reads as follows.

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted." U.S. CONST. amend. VIII.

Cruelty, Prison Conditions, and the Eighth Amendment Although the 8^th Amendment Clause prohibits cruel and unusual punishment, its normative force derives chiefly from its use of the word cruel. The following topics are from Cruelty, Prison Conditions, and the Eighth Amendment. They are definitive; see original.

• Dolovich, Sharon. October 27, 2009. Cruelty, Prison Conditions, and the Eighth Amendment. New York University Law Review, Vol. 84, No. 4, 2009; Georgetown University Law Center.

• supreme court principles guiding judicial analyses of the eighth amendment
• whether the sentence would be cruel in light of the crime
• pretrial detainees & 14^th amendment due process clause
• overcrowding
• unconstitutional conditions when they satisfy two doctrinal components
• Farmer v. Brennan’s flawed reasoning
• prison conditions as state punishment
• the reach of state punishment: harms on the margins
• When are prison conditions cruel?
• the state’s carceral burden
• state punishment and cruel institutions
• official actions and institutional cruelty
• prisons as sites of institutional cruelty
• capturing cruelty doctrinally
• overcoming the eleventh amendment
• the problem with strict liability
• the problem with recklessness and the case for (heightened) negligence
• implementing negligence: the case for a double standard
• the problem with negligence
• the case for (modified) strict liability
• conclusion: judicial cruelty and the limits of the law

1. Court Opinions Supporting Dolovich Topics The following lists of opinions are not definitive and they are not complete; see original and Dolovich Analysis.

Supreme Court Principles Guiding Judicial Analyses of the Eighth Amendment
1892. O’Neil v. Vermont, 144 U.S. 323, 339 (1892)
1958. Trop v. Dulles, 356 U.S. 86, 100 n.32 (1958)
1972. Furman v. Georgia, 408 U.S. 238, 382 (1972)
1991. Harmelin v. Michigan, 501 U.S. 957, 1004–05 (1991)
2002. Atkins v. Virginia, 536 U.S. 304, 314–16 (2002)
2005. Roper v. Simmons, 543 U.S. 551, 564–65 (2005)
2008. Kennedy v. Louisiana, 128 S. Ct.2641, 2651 (2008

Unconstitutional Conditions When They Satisfy Two Doctrinal Components
1976. Estelle v. Gamble, 429 U.S. 97, 104 (1976)
1991. Wilson v. Seiter, 501 U.S. 294, 296, 298 (1991)
1993. Helling v. McKinney, 509 U.S. 25, 35 (1993)
1994. Farmer v. Brennan, 511 U.S. 825, 834, 836 - 37 (1994; key case in this area)

2. Law Reviews/Studies Supporting Dolovich Topics
Lists are in the sequential order written in Cruelty, Prison Conditions, and the Eighth Amendment. They are not definitive or complete; see original and Dolovich Analysis.

Supreme Court Principles Guiding Judicial Analyses of the Eighth Amendment
• David B. Hershenov, Why Must Punishment Be Unusual as Well as Cruel To Be Unconstitutional?, 16 PUB. AFF. Q. 77 (2002)
• John F. Stinneford, The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation, 102 NW. U. L. REV. 1739 (2008).
• Philip P. Hallie, Cruelty, in 1 ENCYCLOPEDIA OF ETHICS 229, 229 (Lawrence C. Becker & Charlotte B. Becker eds., 1992) ("Cruelty is the activity of hurting sentient beings.")
• John Kekes, Cruelty and Liberalism, 106 ETHICS 834, 838 (1996)
• Dean J. Champion, Measuring Offender Risk 53–54 (1994)

Unconstitutional Conditions When They Satisfy Two Doctrinal Components
• Howard Gillman, Political Development and the Origins of the "Living Constitutionalism" 4. Although living constitutionalism is generally regarded as opposed to originalism.
• Jack M. Balkin, Framework Originalism and the Living Constitution, 103 NW. U. L. REV. 549, 557 (2009).

V. ACADEMIA

The authors have no idea of the significance of the following list of law reviews and/or studies; the list is not definitive and it is not complete; see Dolovich Analysis for more.
1981. Eighth Amendment--A Significant Limit on Federal Court Activism in Ameliorating State Prison Conditions
1991. Prisoners' Rights
1992. Cruelty, Encyclopedia of Ethics
1994. Notes: Helling V. Mckjnneyand Smoking in The Cell Block: Cruel and Unusual Punishment?
1994. Measuring Offender Risk
1996. Cruelty and Liberalism
2000. Prison Overcrowding: Standards in Determining Eighth Amendment Violations
2002. Why Must Punishment Be Unusual as Well as Cruel To Be Unconstitutional?
2006. Incapacitation through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity
2008. The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation
2009. Cruelty, Prison Conditions, and the Eighth Amendment
2009. Framework Originalism and the Living Constitution
2012. The Eighth Amendment Evolves: Defining Cruel and Unusual Punishment through the Lens of Childhood and Adolescence

Abstracts of the above law reviews and/or studies follow.

2009. Cruelty, Prison Conditions, and the Eighth Amendment

• Dolovich, Sharon. October 27, 2009. Cruelty, Prison Conditions, and the Eighth Amendment. New York University Law Review, Vol. 84, No. 4, 2009; Georgetown University Law Center.

Abstract: The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not "punishment" within the meaning of the Eighth Amendment. Farmer’s reasoning, however, does not withstand scrutiny. As this Article shows, all state-created prison conditions should be understood to constitute punishment for Eighth Amendment purposes.With this in mind, this Article first addresses the question of when prison conditions are cruel, by considering as a normative matter what the state is doing when it incarcerates convicted offenders as punishment and what obligations it thereby incurs toward its prisoners. This Article then turns to the question of constitutional implementation and considers what doctrinal standards would best capture this understanding of cruel conditions.

At the heart of the argument is the recognition that the state, when it puts people in prison, places them in potentially dangerous conditions while depriving them of the capacity to provide for their own care and protection. For this reason, the state has an affirmative obligation to protect prisoners from serious physical and psychological harm. This obligation, which amounts to an ongoing duty to provide for prisoners’ basic human needs, may be understood as the state’s carceral burden. This, at its core, is the problem with Farmer’s recklessness standard: It holds officers liable only for those risks they happen to notice - and thereby creates incentives for officers not to notice - despite the fact that when prison officials do not pay attention, prisoners may be exposed to the worst forms of suffering and abuse. As this Article shows, either a heightened negligence standard on which a lesser burden would attach to those claims alleging macro-level failures of care or a modified strict liability approach would be far more consistent with the possibility of meaningful Eighth Amendment enforcement. Unfortunately, by encouraging judges to deny the existence of cruel treatment in the prisons, the prevailing doctrinal regime instead makes the judiciary into yet another cruel institution vis-�-vis society’s prisoners.


VI. OREGON COURTS: OREGON JUDICIAL SYSTEM

http://courts.oregon.gov/OJD/OSCA/cpsd/courtimprovement/access/pages/resources.aspx

A. Access to Justice Resources The following links provide additional information on the procedures, services, and people in Oregon's legal system, facts and trends affecting Oregon's diverse population, initiatives to improve access to Oregon's justice system, and links to national resources

B. Flow Charts

1. Who’s in Charge of Oregon’s Criminal Justice System? - Simple (Oregon Justice System Flow Chart_1)
2. Bureau of Justice Flowchart of Criminal Justice System - Complex (Oregon Justice System Flow Chart_2)
3. Juvenile Justice System Structure and Process Case Flow Diagram (U.S. Office of Juvenile Justice and Delinquency Prevention)
4. Flow Charts of Oregon County Juvenile Justice Departments
• Yamhill County’s Juvenile Justice System
• Marion County Juvenile Department’s Flow Charts
• Lane County Adult Criminal Justice System Flow Chart
Lane County Public Safety Coordinating Council. December 1, 2011 Status of the Public Safety System in Lane County as per Senate Bill 77. Report to the Board of County Commissioners. Eugene, OR.